Kanta Kishore Moharana vs State Of Odisha & Ors
2023 Latest Caselaw 12924 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.34666 of 2023

        Kanta Kishore Moharana                  ....                 Petitioner
                                                            Mr. R. Achary, Advocate

                                                 -versus-

        State of Odisha & Ors.                  ....                Opposite Parties
                                                            Mr. M.K. Balabantaray, AGA


                            CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                       ORDER

18.10.2023 Order No

01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. R. Achary, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties.

3. The Petitioner has filed the present writ petition inter alia with the following prayer:-

"It is, therefore, most respectfully prayed that this Honourable Court may graciously be pleased to Admit the Writ Petition, call for records and direct the Opp. Parties to show-cause and if the Opp. Parties fail to show-cause or show insufficient cause, allow this writ application.

And Issue an appropriate Writ(s)/Direction(s) to set aside the appointment of Opposite Party No. 5 against the post of Associate Professor in pursuant to Annexure-4 and further to declare that the selection to the post of Associate Professor under the Department of Sculpture in pursuant to Annexure-4 is not in consonance with law;

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May also be pleased to pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

4. In course of hearing since it is found that pursuant to the advertisement issued by the University the Petitioner participated in the selection process without challenging the same and after becoming unsuccessful, he cannot challenge the process of selection in view of the decision of the Hon'ble Apex Court in the case of Madras Institute of Development Studies & Anr. Vs. K. Sivasubramaniyan & Ors. ((2016) 1 SCC 454) and the order passed by this Court in the case of Kunilata Dutta Vs. State of Odisha & Ors. (2010 (Supp. -II) OLR - 437).

4.1. Hon'ble Apex Court in Para 14 to 18 of the Judgment in the case of Madras Institute has held as follows:-

"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

15. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court 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

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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 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.'

16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9)

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. 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 Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three learned Judges of

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this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

17. In Manish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129] , recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents."

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4.2. This Court in Para 12 of the Judgment in the case of Kunilata Dutta has held as follows:-

"12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Utteranchal and others, (2008) 4 SCC 171-2009 AIR SCW 3265, the Apex Court held that when the petitioner took a Chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estoppel and precluded the questioning the said selection process."

5. In view of the same, this court is not inclined to entertain the prayer as made in the writ petition and accordingly dismiss the same.

(Biraja Prasanna Satapathy) Judge Sneha