Orissa High Court
Ram Chandra Singh vs State Of Odisha & Others .... Opposite ... on 8 January, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (OAC) No.1602 of 2016
Ram Chandra Singh .... Petitioner
Mr. M.K. Mohanty, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr. S.K. Samal, AGA
COROM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
08.01.2024
Order No
05. 1. This matter is taken up through Hybrid Mode.
2. Heard learned counsel appearing for the Parties.
3. Even though the present Writ Petition has been filed
challenging the stipulation contained in the advertisement
dtd.14.02.2013 under Annexure-8, but from the counter
affidavit it is found that Petitioner in terms of the
advertisement duly participated in the selection process.
4. Learned Addl. Government Advocate for the State
placing reliance on the stand taken in the counter affidavit
contended that since Petitioner has taken part in the
selection process in terms of the advertisement issued
under Annexure-8, he has got no locus standi to challenge
the stipulation contained in the advertisement. It is also
contended that selection process in terms of Annexure-8
has since been completed and there is no interim order
protecting the interest of the Petitioner.
4.1. In support of the aforesaid submission, learned
counsel for the Petitioner relied on the decisions in the
case of Madras Institute of Development Studies & Anr. Vs. K.
// 2 //
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).
4.2. 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
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
// 3 //
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
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
// 4 //
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 On Line 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."
4.3. 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
// 5 //
second advertisement. She is estoppel and precluded the
questioning the said selection process."
5. Mr. M.K. Mohanty, learned counsel for the Petitioner
though does not dispute the stand taken in the counter
affidavit regarding participation of the Petitioner in the
selection process, but contended that even though
Petitioner participated in the selection process, but he has
got every right to challenge the stipulation contained in the
advertisement so far as it relates to conduct of the
swimming test as well as written test.
6. Having heard learned counsel for the Parties and after
going through the materials available on record, this Court
finds that the Petitioner in terms of the advertisement
issued on 14.02.2013 under Annexure-8 participated in
the selection process. Therefore, placing reliance on the
decisions as cited (supra), this Court is of the view that
since the Petitioner participated in the selection process,
he cannot challenge the stipulation contained in the
advertisement in question.
7. In view of the same, this Court is not inclined to
entertain the writ petition and dismiss the same.
(Biraja Prasanna Satapathy)
Judge
Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
