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Madhya Pradesh High Court
Ajay Singh Shakya vs The State Of Madhya Pradesh on 13 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:8858
1 WP. No. 8870 of 2016
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 13th OF MARCH, 2026
WRIT PETITION No. 8870 of 2016
AJAY SINGH SHAKYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nikhil Bhatele - Advocate for petitioner.
Shri K.K. Prajapati - Government Advocate for the respondent/State.
___________________________________________________________________
ORDER
This petition under Article 226 of the Constitution of India has been filed
by the petitioner seeking the following reliefs:-
"1. The impugned action on the part of the respondent
treating the petitioner to be ineligible in the recruitment in
question may kindly be held to be illegal and accordingly the
respondents may kindly be directed to treat the petitioner to
be eligible for all purposes in the recruitment and grant all
consequential benefits.
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2. Any other relief which this Hon'ble Court deem fit in the
facts and circumstances of the case may kindly be granted to
the petitioner."
2. Learned counsel for the petitioner submits that the action of respondent in
treating the petitioner as ineligible for participation in the recruitment of Sub-
Inspector, M.P. Police, under the category of ex-serviceman, on the ground that
petitioner is still in service of the Indian Army, is wholly unsustainable. It is
further submitted that as per the definition under Rule 2(c) of the M.P. Ex-
Servicemen (Reservation of Vacancies in the State Civil Services and Posts Class
III and Class IV) Rules, 1985, a person who is due for retirement within a period
of six months from the date of application is entitled to apply for recruitment to
civil posts. It is further submitted that in view of the aforesaid statutory
provision, the action of the respondent in declining to permit the petitioner to
participate in the recruitment process is illegal, arbitrary, and unconstitutional.
3. Per contra, learned counsel for the respondent/State submits that a specific
condition has been prescribed in Clause 1.6.8 of the advertisement (Annexure
P/2), according to which petitioner is not entitled to claim the benefit of Ex-
Army Man as he does not fall within the definition provided under Clause 1.6.8
of the said advertisement. It is further submitted that in view of the aforesaid
clause mentioned in the advertisement, the contention of petitioner that he would
retire after six months i.e., in January, 2017 and would thereafter receive pension
as an Ex-Army Man cannot be accepted. Therefore, petitioner is not eligible for
the post under the category of Ex-Army Man. It is further submitted that if
petitioner had any grievance with regard to the conditions mentioned in the
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advertisement, he ought to have challenged the advertisement before
participating in the recruitment process. Learned counsel for the respondent/State
has also placed reliance upon the order dated 22.03.2024 passed in W.P.
No.25631/2021 by the Co-ordinate Bench of this Court (Indore Bench) in the
case of Dr. Jagram Verma Vs. State of M.P. and Others.
4. Heard learned counsel for the parties and perused the record.
5. The relevant paras 16 to 18 of Dr. Jagram Verma (supra) are quoted below
for ready reference and convenience:
"16] On the other hand, since the petitioner has already
participated in the selection process, he is precluded from
challenging the advertisement, as has been held by the Supreme
Court in the case of Mohd. Mustafa Vs. Union of India and others
reported as (2022) 1 SCC 294, paras 35 to 41 of which read as
under:-
"35. It is in this context, we have to examine whether the
appellants are estopped from challenging the recommendations
made by the Empanelment Committee, given the fact that they
had taken a calculated chance, and not protested till the
selection panel was made public. In our opinion, the ratio in
Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995)
3 SCC 486 : 1995 SCC (L&S) 712] , would apply in the present
case as when a person takes a chance and participates,
thereafter he cannot, because the result is unpalatable, turn
around to contend that the process was unfair or the selection
committee was not properly constituted. This decision, no
doubt, pertains to a case where the petitioner had appeared at
an open interview, however, the ratio would apply to the present
case as the appellant too had taken a calculated chance in spite
of the stakes, that too without protest, and then has belatedly
raised the plea of bias and prejudice only when he was not
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recommended. The judgment in Madan Lal [Madan Lal v. State
of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712] refers to an
earlier decision of this Court in Om Prakash Shukla v. Akhilesh
Kumar Shukla [Om Prakash Shukla v. Akhilesh Kumar Shukla,
1986 Supp SCC 285 : 1986 SCC (L&S) 644], wherein the
petitioner who had appeared at an examination without protest
was not granted any relief, as he had filed the petition when he
could not succeed afterwards in the examination. This principle
has been reiterated in Manish Kumar Shahi v. State of Bihar
[Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 :
(2011) 1 SCC (L&S) 256] , and Ramesh Chandra Shah v. Anil
Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC
309 : (2013) 3 SCC (L&S) 129] .
36. More appropriate for our case would be an earlier decision
in G. Sarana v. University of Lucknow [G. Sarana v. University
of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S) 474] ,
wherein a similar question had come up for consideration
before a three Judge Bench of this Court as the petitioner, after
having appeared before the selection committee and on his
failure to get appointed, had challenged the selection result
pleading bias against him by three out of five members of the
selection committee. He also challenged constitution of the
committee. Rejecting the challenge, this Court had held : (SCC
p. 591, para 15)
"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 of 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 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
case [Manak Lal v. Prem Chand Singhvi, AIR 1957 SC
NEUTRAL CITATION NO. 2026:MPHC-GWL:8858
425] 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 : (AIR p.
432, para 9)
''9. ... 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."
37. The aforesaid judgment in G. Sarana [G. Sarana v.
University of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S)
474] was referred in Madras Institute of Development Studies v.
K. Sivasubramaniyan [Madras Institute of Development Studies
v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC
(L&S) 164] ,in which selection to the post of Assistant Professor
was challenged on the ground that shortlisting of candidates
was contrary to the Faculty Recruitment Rules. The challenge
was declined on the ground of estoppel as the respondent,
without raising any objection to the alleged variations in the
contents of the advertisement and the Rules, had submitted his
application and participated in the selection process by
appearing before the committee of experts.
38. Equally appropriate would be a reference to the decision of
this Court in P.D. Dinakaran (1) v. Judges Inquiry Committee
[P.D. Dinakaran (1) v. Judges Inquiry Committee, (2011) 8 SCC
380], in which the allegation was that one of the members of the
committee constituted by the Chairman of the Council of States
(Rajya Sabha) under Section 3(2) of the Judges (Inquiry) Act,
1968 was biased. This judgment extensively recites and
assimilates from both domestic and foreign judgments on the
question of bias and prejudice and quotes the following
observations in G. Sarana [G. Sarana v. University of Lucknow,
(1976) 3 SCC 585 : 1976 SCC (L&S) 474] case : (G. Sarana
NEUTRAL CITATION NO. 2026:MPHC-GWL:8858
case [G. Sarana v. University of Lucknow, (1976) 3 SCC 585 :
1976 SCC (L&S) 474] , SCC p. 590, para 11)
"11. ... the real question is not whether a member of an
administrative board while exercising quasi-judicial
powers or discharging quasi-judicial functions was
biased, for it is difficult to probe the mind of a person.
What has to be seen is whether there is a reasonable
ground for believing that he was likely to have been
biased. In deciding the question of bias, human
probabilities and ordinary course of human conduct
have to be taken into consideration."
xxxxxxxxxxxx
41. In P.D. Dinakaran (1) [P.D. Dinakaran (1) v. Judges Inquiry
Committee, (2011) 8 SCC 380] , this Court held that the
member in question had during a seminar spoken against the
proposed elevation of the petitioner as a Judge of the Supreme
Court and, therefore, the apprehension of likelihood of bias is
reasonable and not fanciful, though in fact, the member may not
be biased. Nevertheless, the writ petition was dismissed on the
ground that the petitioner was not a lay person and being well-
versed in law should have objected to the constitution of
committee when notified in the Official Gazette, which factum
was highly publicised in almost all newspapers.
Notwithstanding the awareness and knowledge, the petitioner
did not object, which indicates that he was satisfied that the
member had nothing against him. Therefore, belated plea taken
by the petitioner did not merit acceptance and mitigates against
bona fides of the objection to the appointment of the person as a
member of the committee. ......................................
(Emphasis Supplied)
17] A perusal of the aforesaid decision clearly reveals that it is not
the ratio of this case that when a person has participated in a
proceeding/selection process etc., he is precluded from challenging
the same, but the rider is that his or her objections must be voiced
before participating in the said process. In other words, if a person
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is taking exception to any selection process or the like, he cannot do
so after he has participated and failed in the same, however, if he
has challenged such process at the earliest opportunity, before
participating in the same, then, even if he or she participates in the
said process afterwards, it would not be considered as his or her
deemed waiver of the objection.
18] Thus, tested on the said anvil, it is found that the petitioner had
challenged the impugned order by filing this petition on 30.05.2017,
whereas, the impugned advertisement was also issued on
16.02.2015. In such circumstances, it is held that despite the
petitioner's participation in the selection process, he cannot
challenged the said advertisement on the principle of estoppel. The
challenge was declined on the ground of estoppel as the petitioner,
without raising any objection to the alleged variations in the
contents of the advertisement and the Rules, had submitted his
application and participated in the selection process by appearing
in it."
6. The order dated 10.09.2025 of this Court in the case of Smt. Bhawna
Sharma Vs. State of M.P. and Ors. passed in W.P. No.2999/2014, relevant
paras 7 and 8 of which are quoted below for ready reference and convenience:
"7. The Hon'ble Apex Court in the case of Maharashtra Public
Service Commission through its Secretary Vs. Sandeep Shriram
Warade And Others reported in (2019) 6 SCC 362 has held as under:
"9. The essential qualifications for appointment to a post
are for the employer to decide. The employer may prescribe
additional or desirable qualifications, including any grant
of preference. It is the employer who is best suited to decide
the requirements a candidate must possess according to the
needs of the employer and the nature of work. The court
cannot lay down the conditions of eligibility, much less can
it delve into the issue with regard to desirable qualifications
being on a par with the essential eligibility by an
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interpretive re-writing of the advertisement. Questions of
equivalence will also fall outside the domain of judicial
review. If the language of the advertisement and the rules
are clear, the court cannot sit in judgment over the same. If
there is an ambiguity in the advertisement or it is contrary
to any rules or law the matter has to go back to the
appointing authority after appropriate orders, to proceed in
accordance with law. In no case can the court, in the garb
of judicial review, sit in the chair of the appointing authority
to decide what is best for the employer and interpret the
conditions of the advertisement contrary to the plain
language of the same.
10. The fact that an expert committee may have been
constituted and which examined the documents before
calling the candidates for interview cannot operate as an
estoppel against the clear terms of the advertisement to
render an ineligible candidate eligible for appointment.
11. The plain reading of the advertisement provides that
a degree in Pharmacy or Pharmaceutical Chemistry or in
medicine with specialisation in Clinical Pharmacology or
Microbiology from a university coupled with the requisite
years of experience thereafter in manufacturing or testing of
drugs were essential qualifications. Preference could be
given to those possessing the additional desirable
qualification of research experience in the synthesis and
testing of drugs in a research laboratory.
12. Manufacture has been defined as a process for
making, altering, ornamenting, finishing, packing, labelling,
breaking up or otherwise treating or adopting any drug or
cosmetic with a view to its sale or distribution. Therefore,
the experience of testing has to be correlated to the
manufacturing process which naturally will be entirely
different from the testing carried out in the research and
development laboratory before the product is released for
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manufacture and sale in the market. To say that experience
in testing of drugs in a research and development
laboratory would be on a par with the testing done at the
time of manufacture before sale cannot be countenanced
and has to be rejected.
13. The preference clause in Clause 4.7 only means that
if a candidate with the required degree qualification and
practical experience in the manufacturing and testing of
drugs for stipulated period of years has an additional
desirable attribute of a research experience in a research
laboratory, other things being equal, preference could be
given to such a candidate. The term "preference"
mentioned in the advertisement cannot be interpreted to
mean that merely because a candidate may have had the
requisite experience of testing in a research and
development laboratory he/she possessed the essential
eligibility and had a preferential right to be considered for
appointment."
7. The relevant clause of the advertisement is quoted below for ready
reference and convinience:
**1-6-8 mu vH;fFkZ;ksa dks tks HkwriwoZ lSfud laoxZ ds vUrxrZ vkrs gSa mldh
orZeku vk;q esa ls mlds }kjk igys dh xbZ leLr izfrj{kk lsok dh dkykof/k
de djus dh ik=rk gksxh] c'krsZa blds ifj.kke Lo:i mudh vk;q vf/kdre
vk;q ls 3 o"kZ ls vf/kd ugha gksxh] vFkkZr 31 o"kZ ls vf/kd ugha gksxhA HkwriwoZ
lSfud dh ik=rk j[kus okys mEehnokjksa ds laca/k esa lSfud dh j{kk
lsok esa fu;ekuqlkj isa'ku izkIr djrk gks vFkok v'kDr gksus ij fpfdRlk
laxBu }kjk v'kDr isa'ku izkIrdrkZ dks gh HkwriwoZ lSfud ekuk x;k gSA
nqjkpj.k vFkok v{kerk ds vk/kkj ij lsuk ls fu"dkflr fd;s x;s O;fDr;ksa dks
Hkwr iwoZ lSfudks ds ykHk izkIr ugha gksxsaA"
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8. Admittedly, Clause 1.6.8 of the advertisement (Annexure P/2) specifically
provides that the petitioner does not fall within the definition of Ex-Army Man
and, therefore, is not entitled to claim the said benefit. The contention of the
petitioner that he would retire after six months and thereafter receive pension as
an Ex-Army Man cannot be accepted in view of the said clause. Petitioner is not
defnined as Ex. Army Man till cut of date i.e. last date of submission of
application form. Consequently, the petitioner is not eligible for the post under
the Ex-Army Man category. If the petitioner had any grievance regarding the
conditions of the advertisement, he ought to have challenged the same before
participating in the recruitment process.
9. In view of the foregoing discussion and taking into consideration, the
entire facts and circumstances of the present case, this Court is of the considered
view, that no case is made warranting interference.
10. Ex. Consequenti, petition fails and is hereby dismissed.
(Anand Singh Bahrawat)
Judge
Ahmad
